But by then such laws have often become sacred cows, perpetuated long past their glory days by self-serving politicians, interest-group lobbies, and media nostalgia or bias. Their reach is very hard to restrain unless an unusual opportunity presents itself.

So it is with Section 5 of the iconic Voting Rights Act of 1965, which was initially set to expire in 1970. It requires eight states in the Deep South, plus Alaska and parts of seven other states, to obtain “preclearance” from the U.S. Justice Department (or a slow-moving special court) before making even the minutest change in their voting rules.

Section 5 played a critical role in ending the disenfranchisement of Southern blacks and breaking the back of American apartheid. But we live in a different America. The very racial progress that Section 5 helped accomplish has arguably made it unnecessary and certainly calls for reducing its intrusion on state powers.

Indeed, many or most of the states and localities covered by Section 5 have become as protective of voting rights as the rest of the country. And Section 2 of the act provides ample authority to deal with residual voting rights violations — which no doubt still occur — through the ordinary judicial process.

Efforts to reform Section 5 have nonetheless been beaten back by left-wing Democrats, right-wing Republicans (some of whom benefit from the racial gerrymandering it imposes, while others would prefer its outright elimination on ideological grounds), the civil rights lobby, and its allies in the news media and the Justice Department’s Civil Rights Division.

Even as the grave wrongs that justified the drastic Section 5 remedy have receded into the past, Congress has repeatedly extended it, most recently until 2031, without substantially easing the burden imposed on the many covered states and localities with good voting rights records.

Indeed, when Section 5 came up for renewal in 2006, Congress made it even more onerous. For example, Congress overruled a 2003 Supreme Court decision (in Georgia v. Ashcroft) by prohibiting states from replacing any of their existing majority-minority districts — safe seats for minority politicians — with districts that would be more racially integrated.

This despite the fact that virtually all black politicians in Georgia had urged the Court to rule as it did in 2003, and despite strong evidence that more-integrated districts would be better both for minority voters and for attaining what Rep. John Lewis (D-Ga.), a civil-rights icon, once called the goal of a community “where we would be able to forget about race and color and see people as people, as human beings, just as citizens.”

In part because of such perverse provisions, next year may well present President Obama and Congress with the likelihood of a near-term Supreme Court decision striking Section 5 down in its entirety. (There are no fewer than five challenges to Section 5 now pending in lower federal courts.) And that prospect will, or at least should, provide the president and Congress with a strong incentive to avert a looming constitutional clash by reforming Section 5.

The handwriting has been on the wall since a 2009 decision (in Northwest Austin Municipal Utility District Number 1 v. Holder) in which all nine justices made it clear that Section 5 badly needs revision, with five of them seeming to imply during the oral argument that if Congress does nothing, the Court will strike down the law at its next opportunity. Writing for eight of the justices, Chief Justice John Roberts stressed that: “things have changed in the South,” “minority candidates hold office at unprecedented levels,” and “the racial gap in voter registration and turnout is lower in the States originally covered by [Section] 5 than it is nationwide.”

In other words, the central problem that the provision was adopted to address seems largely solved. Meanwhile, added the eight, Section 5 “imposes current burdens and must be justified by current needs.”

The Court avoided deciding whether Section 5 is still constitutional by straining to decide the 2009 case on narrow statutory grounds.

The justices seemed to hope that this brushback pitch would prompt President Obama and Congress to reform Section 5 rather than risk seeing it wiped off the books. But so far they have done nothing, perhaps because no new challenge to Section 5 has yet reached the Court.

Meanwhile, as Rep. Jack Kingston (R-Ga.) once said to the Washington Post, Section 5 continues to require that in covered jurisdictions, “If you move a polling place from the Baptist church to the Methodist church, you’ve got to go through the Justice Department” (or the special court).

Indeed, the 2009 case got its start when a Texas municipal utility district with no history of voting rights violations bridled at Section 5’s requirement that it seek permission before it could move its elections to a more convenient location. The Justice Department fields tens of thousands of preclearance requests each year, often for actions as innocuous as moving a polling site.

And as justices stressed during the 2009 argument, there’s no plausible reason now for the law to require, say, Georgia, but not Ohio, to ask the federal government “Mother may I?” for every voting change.

In past cases, the Supreme Court has also criticized the Justice Department’s Civil Rights Division for using Section 5 to press covered states and localities to use extreme racial gerrymandering to create safe voting districts for black and Hispanic politicians. This has the side effect of “bleaching” nearby districts and thus delivering them to hard-right Republicans.

This racial gerrymandering undoubtedly helps black and Hispanic politicians win more seats. But it may diminish the legislative clout of black and Hispanic voters, who can safely be ignored by representatives of the more numerous overwhelmingly white districts. Extreme racial gerrymanders also aggravate the ideological polarization that has paralyzed Congress by hurting centrist candidates who seek to appeal to cross-racial coalitions.

In the best-known of the pending cases that could reach the Court, the Justice Department has blocked new voter-ID laws in South Carolina and Texas, claiming that they would disenfranchise many minority voters and are not needed to prevent fraud. But both points are debatable, and the Supreme Court rejected an attack on a similar Indiana law in a 2008 decision authored by now-retired Justice John Paul Stevens, the Court’s leading liberal, in part because it’s easy to get a valid photo-ID.

Even the prospect of a decision striking down Section 5 may not be enough to bring about the wholesale reform that should be adopted. But the most glaring flaw could readily be fixed, with a little presidential leadership: Congress could and should make it easy for states and localities with clean voting rights records to be exempted from Section 5’s coverage. And such a fix, though modest, might persuade the Court to avoid striking down Section 5.

The post Times Have Changed: Civil-Rights Era Voting Law Needs Reform appeared first on Stuart Taylor, Jr..

So says Newsweek, which interviewed her for a cover story. Many viewers of her TV appearances agree. So why shouldn’t she get her day in court?

She should–in civil court. But not in criminal court, in part because of her history of telling vivid and compelling lies, including her invention of a years-ago fictional gang rape and her false statements about her movements immediately after the alleged Strauss-Kahn assault. Plus the inherent implausibility of her claim that a man she had never met suddenly rushed in naked from the bathroom while she was cleaning his suite, attacked her like a madman, and forced her without a weapon to perform oral sex.

Diallo’s history of serial lying alone makes it clear that the prosecution could never prove Strauss-Kahn guilty of the violent sexual assault charged in the indictment beyond a reasonable doubt.

In short, Manhattan District Attorney Cyrus Vance Jr. should drop the case.

Remember the Duke lacrosse rape fraud? Remember Tawana Brawley?

Some seem to unlearn the lessons of such cases every time a poor (or not so poor) woman of color accuses a rich (or not so rich) white male of doing something horrible. Especially when the accused admits to conduct that was, at best, unseemly and crude.

The hard fact is that in a great many "he said, she said" cases–including this one–it is impossible to be confident of whether or not the woman consented.

The judgment underlying the criminal justice system’s reasonable-doubt rule is that–as terrible as it is for a victim (especially of a sex crime) to see a criminal escape punishment–it is far, far worse for an innocent person to be convicted of a crime.

With understandable but unduly credulous empathy for the Guinean hotel maid, Newsweek (and ABC News, in a more balanced account) gave a big boost to her and her lawyer’s virtually unprecedented PR campaign to pressure prosecutors to proceed. The DA’s office has already aired doubts about Diallo’s credibility, but the Diallo team knows that if prosecutors drop the case it would damage the multi-million dollar civil suit she plans to file.

For Diallo, the problem is that she has already confessed to a long list of lies. They include telling blood-curdling stories to prosecutors about being gang-raped and politically persecuted in her native Guinea. Those tales were so believable that, according to Linda Fairstein, who spent a quarter-century as Manhattan’s chief sex crimes prosecutor, "experienced, senior people cried when she told her life story, in each of the agencies."

Later, she admitted that the stories came from a fictional script written by others, which she had memorized years before for use in her asylum application.

Other false statements cited by prosecutors include claiming too many dependents on her tax returns, understating her income to retain her rights to public housing, fabricated accounts to prosecutors and the grand jury of what she did after the May 14 incident in Manhattan’s Sofitel Hotel, and more. Plus telling implausible–and inconsistent–stories about the alleged attack itself.

In short, Diallo has forfeited any chance of establishing beyond a reasonable doubt that, when she entered Strauss-Kahn’s $3,000-a-night suite to clean it, he suddenly rushed naked out of the bathroom, acting like a madman, grabbed her breasts and crotch, pushed her and dragged her around the room, and assaulted her so brutally as to force her to perform oral sex on him.

(Lawyers for the former director of the International Monetary Fund and would-be president of France–whose semen was found on Diallo’s clothes and the carpet–have admitted a sexual encounter. They say it was consensual.)

Of course I’ll never know whether this encounter was entirely consensual. But I strongly believe that Diallo is at least overstating Strauss-Kahn’s alleged brutality, and that there is plenty of reason to believe that this was not a violent sexual assault at all.

At the same time, the defense version of events is also rather implausible. The notion that Diallo would willingly perform oral sex on a complete stranger, in the space of less than eight minutes, strains credulity.

I speculate that something neither violent nor completely consensual happened, such as an aggressive attempt at seduction to which she consented for fear of angering a wealthy hotel guest. If so, Strauss-Kahn’s conduct was deplorable–but was not the forcible sexual assault with which he has been charged.

But the main point is that nobody except Diallo and Strauss-Kahn can know beyond a reasonable doubt what happened between them–let alone whether she is telling the whole truth and nothing but the truth.

Why? First, because even Strauss-Kahn’s notoriety as an aggressive womanizer, and even French writer Tristan Banon’s claim that he tried to rape her in 2003, are not enough to make believable the bizarre and extraordinarily risky behavior attributed to him by Diallo. Especially given his apparent unconcern about what Diallo might do or say as he proceeded to meet his daughter for lunch, headed for the airport to fly to France, and then called back to hotel officials to ask them deliver to him his lost cell phone.

Second, because it’s not easy to believe that a 5-foot, 8-inch, overweight, 62-year-old man without a weapon could force that kind of sex on a taller, fit-looking 32-year-old woman who (she says) was desperately trying to fight him off. Not impossible to imagine. But not easy.

Third, because no significant physical evidence of a violent struggle could be found either in Room 2806 or during the medical exams of Strauss-Kahn and Diallo.

Diallo’s lawyer claims that the redness in an area of her genitals mentioned in a hospital report is evidence of a forcible encounter. But a medical expert knowledgeable with the detailed report has said that this is a minor injury with various possible causes, any of which is more likely to have brought about the redness than the kind of external grabbing that Diallo alleges occurred.

Fourth, because her meeting with a personal-injury lawyer the day after the alleged attack suggests at least the possibility that she was thinking about extracting money from Strauss-Kahn early on, perhaps even by the time of her first detailed accounts to investigators.

Fifth, and most important, because we know Diallo to be a serial liar. Witness her false claims of being gang raped. Also consider her three successive versions of what she did after the alleged attack in Room 2806.

Version 1: She first falsely told detectives, prosecutors, and the grand jury that she fled into the hallway, waited until she saw Strauss-Kahn leave the suite and enter an elevator, then reported the alleged attack to a supervisor.

Version 2: Several weeks later, she admitted this story was false and offered another–also false: She had entered another room, 2820, cleaned it, and then returned to the scene of the alleged crime and started to clean Room 2806.

Version 3: After prosecutors got magnetic key-card records showing that she had gone into Room 2820 for less than a minute before returning to 2806, she changed her story again, saying that she had previously cleaned 2820 and went back there after the alleged assault only to retrieve her cleaning supplies before re-entering 2806.

Why lie about such stuff? Perhaps Version 1 reflected concern that some people might be less likely to believe an accuser who had resumed her usual routine before reporting such a brutal assault. It’s unclear why she went to Version 2. And Version 3 came only after the key-card records showed Versions 1 and 2 to be false.

A woman willing to lie about her own post-incident behavior to make her story more believable might also be willing to embellish in other ways, and perhaps to convert a consensual sexual encounter into a violent assault, or an ambiguous one, as speculated above.

Various Diallo accounts of the alleged assault itself are also inconsistent. For example, she told a sexual assault nurse that "he said nothing to her during the incident." Later she told Newsweek that he said quite a lot: "You don’t have to be sorry . . . You’re beautiful . . . You’re not going to lose your job" and–after forcing his penis into her mouth–"suck my dick."

Reasonable doubts are everywhere. And that should be the end of any criminal case.

The post Drop the DSK Charges appeared first on Stuart Taylor, Jr..

That was dissenting Justice Antonin Scalia’s dire prediction on May 23, when by a 5-to-4 vote the Supreme Court sort-of-ordered California to reduce its prison population of about 150,000 by 37,000 as a remedy for "cruel and unusual" denial of medical care to inmates.

Thirty-seven thousand hardened criminals loosed among us! Soaring rates of murders, robberies, and rapes!

I don’t think so. For two reasons.

First, 37,000 prisoners are not going to be released anytime soon, if at all, as a result of this decision. Lost in the noise was the majority’s strong suggestion that the lower court extend from two to five years California’s deadline for reducing its prison population. Also drowned out was the majority’s hope that the state may find ways to fix prison medical care with no mass release at all.

Second, while several thousand prisoners have already been released early and thousands more will be, many or most of these will be minor, nonviolent, non-dangerous drug offenders and the like who should never have been given long prison terms in the first place.

This is not to deny that some of those released will commit violent crimes. People released from prison after serving their time often commit violent crimes. It’s called recidivism.

Nor is this to deny that the dissenters in the prison release case, Brown v. Plata, made some strong points, especially as to the flaws in the lower court decision – by three of the most liberal activist judges in the country – that the majority nominally affirmed.

This case presented the justices with a tragic choice. Understandably, the five-justice majority did not want say, "Turn 37,000 criminals loose and let’s hope they don’t kill, rape, and rob too many people." And the four conservative dissenters – or, at least, Justice Samuel Alito and Chief Justice John Roberts — did not want to say, "Let the cruel and unusual punishment continue forever."

(Justices Scalia and Clarence Thomas did not say that either. But they ruled out any and all broad court-ordered prison reforms, no matter how barbaric the treatment of thousands of prisoners nor how clear it be that the cruelty will continue without such court-ordered reforms.)

But after more than 15 years of litigation over disastrously deficient mental-health and other medical care in California’s overcrowded prisons, the choice looks almost that stark.

And that helps explain why there may be less than meets the eye both to the decision and to the apparent gulf between the majority and the thoughtful Alito-Roberts dissent.

Indeed, the give-California-five-years admonition and other hedges in Justice Anthony Kennedy’s opinion for himself and the four more liberal justices look like backhanded concessions to the strength of Alito’s critique of the three-judge lower court.

Kennedy’s hedges also go some distance toward satisfying the concerns that underlie the Alito-Roberts dissent — although not, by a long shot, the far angrier Scalia-Thomas.

Scalia, who took the unusual step of reading his dissent from the bench, trashed the majority’s decision as "radical," "absurd," "outrageous" and a "judicial travesty," all in his first three paragraphs.

But let’s get back to the semi-convergence between the logic of the far more measured Alito-Roberts dissent and that of Kennedy’s majority opinion.

• Alito argues persuasively that the three-judge lower court "relied heavily on outdated information and findings and refused to permit California to introduce new evidence" showing recent improvements in prison conditions and medical care.

Kennedy sort-of-responds by excusing the lower court’s odd approach while making clear that it should modify the decree either if evidence that the lower court has not yet considered shows that prison medical care has already improved, as demonstrated to some extent by Alito, or if new evidence shows improvement over the next five years.

• Alito argues that the state has been given too little time to try curing constitutional deficiencies in medical care by measures short of mass releases of prisoners, such as buying more medicines, hiring more medical personnel, increasing salaries, expanding medical facilities, improving sanitary procedures, and targeted releases of relatively small numbers of the prisoners most in need of medical care.

Kennedy counters that many years of court-supervised efforts to implement such improvements have fallen far short. But he also hedges that "time and experience may reveal targeted and effective remedies that will end the constitutional violations even without a significant decrease in the general prison population" (emphasis added).

So, suggests Kennedy, if the measures cited by Alito indeed work, the lower court’s order to reduce the prison population by 37,000 should be modified or even rescinded.

And if such measures do not work, and it becomes clear that mass prisoner releases are the only hope of bringing the prisons into compliance with the Constitution, will Alito and Roberts continue to oppose that last-ditch remedy — as Scalia and Thomas have already indicated they will?

I strongly suspect that the majority was well aware of the problems with the work of the three lower court judges. The special court, made up of two district judges and one appeals court judge relied on two class action lawsuits challenging prison mental-health and medical care to push their own agendas and attack overcrowding.

But while prison overcrowding is a grave problem in California, it has not been proved so severe as to violate the Constitution apart from the medical-care problems.

And while overcrowding is a major contributor to the medical-care problems, there’s at least some chance, as Alito stresses, that prison medical care can be brought up to constitutional standards without a mass release of prisoners.

The Supreme Court majority preferred to launch a repair job on the lower court’s flawed handiwork rather than scrapping it, sending the litigation back to square one, and letting the California legislature continue to lock more and more people up indefinitely without providing minimally adequate medical care for many years to come.

I have some sympathy for the majority’s repair-job approach. For this case is replete with evidence of prison conditions so horrible as to inflict unconstitutionally cruel and unusual punishment on the countless sick inmates who are denied minimally adequate medical care.

The record shows prisoner after prisoner suffering and dying due to shocking medical neglect, with psychotic prisoners locked up for many hours in phone-booth-sized cages for lack of anyplace else to put them.

Consider the testimony of Doyle Wayne Scott, former head of corrections in Texas, which is hardly known for coddling prisoners. He described California’s prison conditions as "appalling" and "inhumane," stating that in "more than 35 years of prison work experience, I have never seen anything like it."

The majority’s decision, for all its warts, has the virtue of putting far more pressure on the state to stop the cruel and unusual punishment than would a decision overturning the release order.

And Alito doesn’t really deny that many years of court-supervised efforts to provide decent medical care have so far failed — thanks in large part to the inexorable increase in the number of prisoners and California’s fiscal crisis – to end what the majority calls "needless suffering and death."

At the same time, Alito is properly concerned, as is Scalia, that the majority is "gambling with the safety of the people of California" — that the lower court’s order could precipitate the kind of crime wave that occurred in Philadelphia in the early 1990s after courts forced a mass release of prisoners there. Within 18 months, thousands were rearrested for 9,732 new crimes, including 79 murders.

The lower court in the California case waved aside any such risk, suggesting that several states had reduced prison populations without causing crime waves and confidently predicting that releasing tens of thousands of California prisoners would make the state more safe.

Justice Kennedy, sounding less confident, hopes for the best and hedges his bets.

But a repeat of the prison-release-fed Philadelphia crime wave seems unlikely, even if large numbers of prisoners are eventually released early. One reason is that California has used its "three strikes" law and other draconian measures for many years to impose long prison terms on minor, nonviolent offenders and technical parole violators who just aren’t that dangerous. If the state has any sense, those will be the people who get released early.

And if the state wants to keep even such non-dangerous prisoners locked up, it will have to spend what it takes to end the cruel and unusual neglect of their medical needs.

The post Justice Scalia’s Overheated Dissent appeared first on Stuart Taylor, Jr..

There is plenty of material to support that claim — and also some material that cuts against it — in the tens of thousands of pages of documents involving Kagan’s work in the Clinton White House from 1995 to 1999 that are being released in batches.

And there are more manifestations of liberal ideology in the memos that Kagan wrote in 1987 and 1988 as a law clerk for Thurgood Marshall, a liberal activist justice who had — before taking the bench — been the most accomplished lawyer of the 20th century.

Not to mention Kagan’s efforts — much-decried by Republicans — to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the law excluding gays from the military.

Still, Kagan’s nomination — unlike last year’s nomination of then-Judge Sonia Sotomayor — has been received with good will bordering on enthusiasm by some leading conservative academics.

Part of the reason is that Kagan’s brand of liberalism appears to be less aggressive in terms of social-engineering ambitions and less doctrinaire than that of some other possible Obama nominees.

But the main reason is that these pro-Kagan conservatives see in the former law professor and Harvard Law School dean a quality they consider quite rare in liberal academia, a place that some conservative professors characterize as rife with a closed-minded condescension toward unfashionable ideas that is all the more irksome coming from people who style themselves to be paragons of open-minded reflectiveness.

Kagan, on the other hand, has treated conservatives and their conservative-libertarian sometime-allies with respect, even friendliness, rather than brushing them and their ideas off with the disdain to which they have become accustomed.

While often disagreeing with conservatives, Kagan takes their ideas seriously. And she welcomes intellectual debate free of the politically correct taboos that so greatly narrow the range of acceptable discourse in much of academia.

It also helps Kagan with conservatives that she — unlike Sotomayor — has not been heard to pronounce white males inferior to wise women, whether of Latina or other origins, in the qualities that make for a good judge.

"President Obama’s choice to fill the seat of retiring Justice John Paul Stevens could be much worse," writes Professor Marcus Cole, one of Stanford Law School’s few conservatives, in the PileusBlog. "Indeed, there is some reason to believe that conservatives ought to breathe a collective (pun intended) sigh of relief."

Cole and other Kagan-friendly conservatives cite her role as dean from 2003 to 2008 in pushing to hire three conservative professors — Jack Goldsmith, Adrian Vermuele, and John Manning, all of whom are among her fans — along with a great many more liberals.

"I do not mean to imply that simply listening to an argument or two from the right qualifies one for the Supreme Court," adds Cole. But he says that "it does, I think, distinguish…Kagan from many in the legal academy. It also suggests a measure of basic decency and a genuine interest in intellectual exchange that is becoming increasingly scarce."

Among others expressing similar sentiments are Randy Barnett, a conservative libertarian law professor at Georgetown, and Charles Fried, a senior member of the Harvard Law School faculty who was solicitor general under President Reagan and who came to admire Kagan as a colleague and dean.

Fried has called Kagan "masterful" in dealing with Harvard Law School’s fractious faculty and praised her as driven by genuine affection in dealing with colleagues of various persuasions and as "awesomely intelligent" overall. Justice Antonin Scalia, the Court’s leading conservative theorist, has also had kind to things to say about Kagan, who — as The Washington Post detailed on June 10 — held a dinner in 2006 to honor Scalia at Harvard, his alma mater.

Kagan praised the conservative firebrand as "the justice who has had the most important impact on how we think and talk about the law, and that is whether we agree or disagree with many of his positions." Then she proceeded to disagree, agreeably, with Scalia on the debate over whether we have a "living Constitution."

Critics of Kagan warn their conservative allies not to be beguiled by her disarming manner. And it remains to be seen how often Kagan will find common ground with Scalia and other conservatives once on the Court. More often, it seems likely, than Justice Stevens, who has for many years been the most liberal justice and increasingly bitter in his dissents from conservative decisions.

Kagan could nonetheless swing the Court leftward if she can persuade swing-voting Justice Anthony Kennedy to side with the liberals more often when his vote is up for grabs. It’s never easy for a rookie justice to influence a veteran. But Kagan will be an unusually persuasive rookie.

The post Conservatives for Kagan appeared first on Stuart Taylor, Jr..

Or, perhaps, the court is driven by liberal activists who make up new constitutional rights out of whole cloth and may soon legislate a right to gay marriage.

It all depends on your point of view.

President Obama, his press secretary Robert Gibbs, Senate Judiciary Committee Chairman Patrick Leahy, other congressional Democrats, New York Times editorialists, liberal groups, and others have been attacking Chief Justice Roberts and the other conservative justices for being aggressively conservative corporate shills. These critics’ goals seem to include greasing the wheels for confirmation of Elena Kagan and laying the groundwork for bolder Obama attacks on the court if it keeps messing with his agenda.

Conservatives — who have for decades accused the court of usurping elected officials’ powers to flog liberal causes — now find themselves on the rhetorical defensive.

So the Heritage Foundation fought back on Wednesday by holding an event entitled "The Myth of a Conservative Court and Why Liberals Peddle It," with conservative icon Ed Meese, President Reagan’s attorney general, moderating.

A notice for the event suggested that panelists would argue that it is "a sign of liberal vulnerability to the charge of left-wing activism that they are trying to ascribe their activist ways to others" and to "hoodwink journalists into propagating a moral equivalency between different judges that does not exist."

Which side is right? Both, to some extent. The truth is that eight of the justices have been aggressive in stretching the Constitution to topple laws that they don’t like and the ninth, liberal rookie Sonia Sotomayor, appears likely to settle into a similar pattern.

With four conservative activists, four liberal activists, and all-purpose activist Justice Anthony Kennedy swinging left or right depending on the issue, this is a court that breaks a lot of crockery.

Democrats have rightly denounced the court’s biggest decision so far this year, Citizens United v. FEC, in which the conservative justices and Kennedy freed all corporations (and labor unions) to spend unlimited sums of shareholders money (and members’ dues) supporting or opposing federal candidates.

The majority justices’ unprecedented extension of the First Amendment forfeited whatever high ground they once held in the judicial activism debate. Or so I argued here.

But the other decision most reviled by Democrats was in fact perfectly reasonable and not especially important. That was the 2007 ruling against a sex discrimination plaintiff that Congress overturned in January 2009 by adopting a bonanza for trial lawyers called the Lilly Ledbetter Fair Pay Act.

Obama and other Democrats were able to make the court’s ruling against Ledbetter seem outrageous only by systematically distorting the undisputed facts.

On the other side, perhaps the most far-fetched decision by the liberal justices and Kennedy in recent years was their concoction of a national "consensus" that clearly did not exist to justify banning the death penalty for raping a child — an 8-year-old girl in the case at hand — no matter how depraved the rape. (See discussion at the second link above.)

Of course, there is such riotous disagreement over what the Constitution’s provisions mean that interpretations seen as clearly correct by conservatives outrage liberals and vice versa. This makes it impossible to devise an objective measure of which side has abused judicial power more.

But it is possible to measure whether, as Democrats claim, the court is "conservative" in the sense of being to the right of center of public opinion.

The court has clearly become more conservative than it was since Justice Samuel Alito replaced Sandra Day O’Connor in 2006. But historical consensus and, more recently, national polls show that the justices have not been consistently to the right of center since 1937.

Indeed, since the 1970s they have strayed more often to the left than to the right. The Court’s majority remains left of center on issues including abortion, religion, the death penalty, and gay rights (on which Kennedy usually sides with the four liberals) and close to the center on racial preferences and gun rights (on which he usually sides with the four conservatives).

So it should be no surprise that a Gallup Poll in early May found that 42 percent of respondents wanted a nominee who would make the court more conservative — and only 27 percent wanted a nominee who would make it more liberal.

What about Leahy’s mantra that the court "always seems to side with the big corporate interests against the average American"? Make that "sometimes."

In "Court Defies Pro-Business Label," a March 8, 2009 Washington Post article, reporter Robert Barnes stressed a recent decision exposing pharmaceutical companies’ to state court lawsuits even when they comply with federal safety rules. He also noted that since the May 2007 Ledbetter decision, "the court has consistently sided with employees who have alleged discrimination."

The post The Myth of the Conservative Court appeared first on Stuart Taylor, Jr..

If senators and voters end up deciding that this is a fair characterization, it will be extremely damaging to Kagan’s chances. But it’s not fair.

Kagan does deserve some criticism for making rhetorical attacks on "the military’s" discrimination against gays while giving a pass to her former boss President Clinton and other Democrats who adopted the 1993 law that requires the military to discriminate.

But her policy did not single out military recruiters for disfavored treatment. Rather, it applied to them a longstanding law school rule denying any employer that discriminated against openly gay people access to the career services office.

And I’m betting that after she explains all the facts, she’ll be confirmed by a comfortable margin of 63-37 or thereabouts.

The claim that Kagan has been hostile to the military is confounded by evidence that — at the same time that she was enforcing the law school’s antidiscrimination rules against recruiters — she also praised the military as a "deeply honorable" and "noble" profession and took extraordinary pains to honor students who had served or planned to serve.

And the claim that she "defied" a federal law called the Solomon Amendment — which provides that educational institutions should be stripped of federal funding unless they give military recruiters the same assistance and access to students as other employers — reflects misunderstanding of how the amendment works.

I detailed Kagan’s pro-military gestures in a May 15 National Journal column that also refuted claims that she had "banned" military recruiters from the campus; in fact, they were always permitted to use classrooms and other law school facilities for interviews. Here I explain why the charge that Kagan "defied" the Solomon Amendment does not hold up to scrutiny.

Kagan critics and even some supporters, including me, have given this charge more credence than it deserves by asserting that she "discriminated" against military recruiters — conduct that the Solomon Amendment was indisputably designed to prevent.

But did she discriminate? On reflection, I think not. Rather, Kagan sought to subject military recruiters to the same rules as other employers. These rules included the law school’s longstanding policy excluding from its Career Services Office any employer who discriminated against openly gay people.

(The law school suspended enforcement of this policy at times because of Bush administration threats to cut off Harvard University’s more than $300 million in federal research funding. So Kagan actually denied military recruiters access to the career services office for only a few months, after a 2004 federal appeals court decision holding the Solomon Amendment unconstitutional.)

As explained in an amicus brief that dozens of Harvard law professors including Kagan filed in the Supreme Court, she and her predecessor as dean saw the law school’s policy as fully compliant with the Solomon Amendment.

Under the Harvard-Kagan interpretation, the Solomon Amendment did not apply to educational institutions that disfavored any and all employers who discriminated against openly gay people, including the military. Rather, the amendment required denial of federal funds only to institutions that discriminated against the military qua military, as when universities barred ROTC from campus during and after the Vietnam War.

But under the interpretation adopted by the Bush administration and used by some other law schools, the Solomon Amendment required educational institutions such as Harvard to exempt military recruiters from the nondiscrimination rules that they enforced against other employers.

The Supreme Court unanimously adopted the Bush interpretation of the Solomon Amendment, and upheld its constitutionality, in March 2006. In the process, the justices firmly rejected the Harvard-Kagan interpretation, saying that it would render a the Solomon Amendment "a largely meaningless exercise."

This unanimous rebuff supports critics’ claims that the Harvard-Kagan interpretation was hard to reconcile with the obvious intent of Congress. But given the Solomon Amendment’s ambiguous wording, the Harvard-Kagan interpretation was far from frivolous.

And even under the Bush-Supreme Court interpretation of the Solomon Amendment, it was arguably impossible for Kagan to "defy" the law.

That’s because the amendment — a noncriminal provision — does not purport to make it illegal for educational institutions or the people who run them to disfavor military recruiters. Nor does the amendment make it illegal for them to accept federal funds while disfavoring military recruiters. Instead, the Solomon Amendment appears to rely solely on economic incentives to force educational institutions to give military recruiters equal access.

Rather than placing legal obligations on educational institutions, the amendment directs the government to deny federal funding to any that insist on enforcing their gay rights rules against the military.

Of course, it would have been foolish for Kagan to place Harvard University’s hundreds of millions in federal research funds at risk. And she did not. There was no chance that the government would cut off Harvard’s funding without ample warning. And, once warned, Kagan and Harvard backed down and opened the office of career services to military recruiters.

In short, Kagan is neither a fool nor a scofflaw.

The post The Right’s Bogus Charge Against Kagan appeared first on Stuart Taylor, Jr..

Kagan complained, in a 1995 book review in the University of Chicago Law Review, that all nominees since the defeat of Robert Bork in 1987 had "stonewalled" the Senate Judiciary Committee by refusing to discuss specific issues and sticking to "platitudes." This, she famously wrote, has made confirmation hearings "a vapid and hollow charade." All quite true.

People ranging from Republican senators to my old friends Linda Greenhouse, writing in The New York Times, and Mike Kinsley, writing and on video in The Atlantic Wire, emphatically endorse Kagan’s 1995 case for telling all and hope that she won’t recant now.

But Kagan will recant. And she should. Yes, at first blush there seems to be an overwhelming case for demanding candor from a nominee who seeks a lifetime appointment to an office with more power than any but the presidency, and who will never have to answer to voters.

The strategic reason for stonewalling is to avoid being nibbled to death by liberal and conservative interest groups. The public-policy reason is the need to avoid forcing nominees to make the moral equivalent of campaign promises that would compromise both their own integrity and the independence of the judiciary.

In his Atlantic Wire video, Kinsley calls it "ridiculous" for nominees to refuse to answer detailed questions. He skewers the argument that such testimony would compromise nominees’ impartiality, noting that "we know in great detail what the other eight justices think about issues that have come before the court and no one accuses them of having prejudged."

Kinsley is right about that. It’s routine and inevitable for justices to sit in judgment on (for example) a restriction on abortion in State X after having voted to strike down an identical law in State Y. It follows that a nominee has no ethical obligation – as far as impartiality is concerned – to hide her views on that or any other issue.

But Kinsley ignores a far more compelling consideration: the need for prospective members of the independent third branch to avoid making campaign promises to the other branches to get there.

President Lincoln alluded to this when, in discussing a prospective nominee, he said:
"We want a man who will sustain the Legal Tender Act and the Proclamation of Emancipation. We cannot ask a candidate what he would do; and if we did and he should answer, we should only despise him for it. Therefore we must take a man whose views are known."

Why so? Because we don’t want prospective justices to commit to subordinate their independent judgment to the demands of the elected officials. Such commitments would be corrupt bargains.

Chief Justice John Roberts made a similar point in explaining his own artful dodging of senators’ questions in 2005. To do otherwise, he explained, would become a "bargaining process" rife with pressure to "promise to do certain things in exchange for votes."

This helps explain why for most of our nation’s history, Supreme Court nominees did not testify at all. Also why the only nominee who has ever detailed his views was Bork, who had little choice but to explain the often-incendiary positions that he had previously published on all of the big issues.

In her 1995 book review, Kagan acknowledged that it would pose a "threat to the integrity of the judiciary" for a nominee "to commit herself to voting a certain way on a case," either directly or by "scantily veiled" implication.

But merely "stating a current view as to a disputed legal question," she stressed, posed no such problem and should be required.

Kagan’s distinction would, however, break down in the real world of a Senate confirmation hearing.

Senators will not merely be seeking to satisfy their curiosity when they ask Kagan her current views about whether the Court was wrong to allow corporations to spend on election campaigns; and to uphold the federal law against "partial-birth" abortion; and to uphold racial preferences in law school admissions; and to strike down the death penalty for rapists of children; and whether the Court should strike down the new health care law, and void various gun control laws, and require states to bless same-sex marriage, and strip "under God" from the Pledge of Allegiance, and order the release of dangerous but unprosecutable Guantanamo detainees, and more.

Any nominee who fully disclosed her views – no matter they might be – would almost certainly be defeated. Every candid answer would infuriate some of the swarm of interest groups that focus on every imaginable issue. Dozens of candid answers put together would create a broad and insuperable anti-Kagan coalition including many Democratic senators and all Republicans.

More to the point here, such questions inevitably degenerate into demands for commitments: Are you completely confident of your current view on that partial-birth abortion law? How sure are you that you will never, ever, change your mind? Can we count on you not to disappoint the millions of women who are watching you (and me!!!!!) today? And so on.

There is no clear line that a nominee can draw between stating her current view and making a scantily veiled commitment. And the cleanest way to avoid endless efforts by senators to spin musings into campaign promises is not to start musing.

Advocates of the tell-all approach also overlook the likelihood that it would lead White House officials to push prospective nominees implicitly to pledge their votes on all big issues in secret pre-nomination interviews.

Presidents and their aides have traditionally avoided asking issue-specific questions both because it would be sleazy and because senators routinely require full disclosure of any such discussions and would rightly denounce them.

But if nominees cannot get past the Senate without disclosing their views in confirmation testimony, presidents will be sorely temped to seek secret previews, and to choose nominees corrupt enough to tell them what they want to hear.

Such a nominee’s best hope of being confirmed would then be to tell a majority of the senators what they want to hear, in a collection of quasi-commitments contradicting some of those made to the president.

Better to buy a pig in a poke than start down this road.

Why do we face such bleak alternatives? Because the Constitution’s vision of a life-tenured judiciary independent of politics rested on the premise that by and large the justices would not be making national policy. And that premise has been washed away by the vast powers that justices of all ideological stripes have arrogated to themselves.

The post Why Kagan Should Stonewall the Senate appeared first on Stuart Taylor, Jr..

Another irony is that after vowing to name a justice with "a keen understanding of how the law affects the daily lives of the American people," the president has chosen a New-York born graduate of Princeton and Harvard Law School who has spent almost her entire career teaching in elite law schools and working in the upper echelons of the Clinton and Obama Administrations. Her experience has been far from the circumstances of most ordinary Americans. (Stevens is the only member of the current Court who did not attend Harvard or Yale Law School.)

This is not to deny the 50-year-old Kagan’s notable strengths: a brilliant legal mind, demonstrated skills as a consensus-builder and conciliator as dean of Harvard Law School from 2003 to 2008, an engaging personality, skilled at getting along with liberals and conservatives alike, and parents whose lives and careers exposed her to the struggles of ordinary people — plus, the prospect of serving as a justice for 40 years if she, like Stevens, lasts until age 90.

Nor is it to deny that Kagan is widely expected to join the Court’s liberal bloc and will get plenty of flak from conservatives during her confirmation process, especially over her passionate efforts to ban military recruiters from Harvard Law School’s career services facilities because of Congress’s exclusion of gays from the military.

But Kagan’s record suggests that she probably falls to the right of Stevens — arguably the most liberal current justice — at least on the presidential-power and war-on-terror issues that may be more important than any others that come before the justices in our times.

This helps explain why the enthusiasm for Kagan among moderate liberals is not shared by some of their more leftist allies.

To be sure, one of Kagan’s distinctive attributes is her extraordinary care over the years to avoid disclosing her opinions of most controversial issues — abortion, race, and religion, for starters — even in private conversation, let alone in her public paper trail. So there is little basis for assessing whether she will be more or less liberal than Stevens on many issues.

But on presidential power and terrorism, she is more of a known quantity.

Justice Stevens led the Court’s assault on the Bush Administration’s sweeping claims of presidential and congressional power to wage war against terrorism. In three big decisions in 2004, 2006, and 2008, narrow liberal majorities — with swing-voting Anthony Kennedy providing the fifth vote — for the first time asserted judicial power to review presidential detentions of alleged "enemy combatants" seized and held abroad. Stevens and his allies also invalidated the rules decreed by Bush for "military commission" trials of foreigners for alleged war crimes and severely restricted interrogations of suspected terrorists.

Kagan has had no occasion to revisit those precise issues as solicitor general. But on somewhat analogous issues — both in her 2009 confirmation testimony and in defending Obama’s continuation of some Bush policies that left-liberals reviled — she has sought to limit the reach of the 2008 decision and has firmly rejected the stance of the left.

"Among the most disturbing aspects" of Kagan’s record, wrote left-liberal commentator Glenn Greenwald in Salon, "is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with [Republican Senator] Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a ‘battlefield,’ that ‘war’ is the proper legal framework for analyzing all matters relating to terrorism, and the government can therefore indefinitely detain anyone captured on that ‘battlefield’ (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an ‘enemy combatant.’"

Likewise, as Solicitor General, she has forcefully championed Obama’s continuation of Bush’s long-term detention without trial of Guantanamo prisoners; of Bush’s detention of prisoners in Afghanistan with no judicial review at all; and of Bush’s use of the "state secrets" doctrine to fend off lawsuits over Bush’s warrantless wiretapping program. Kagan has also apparently helped shape Obama’s plan to use congressionally revamped military commissions to try some terrorism suspects and other broad claims of presidential power.

Of course, it is Kagan’s job as Solicitor General to defend Obama’s policies even if she disagrees with them. But she has given no hint that she disagrees.

Commentators on the left also complain that Kagan never compiled much of a record of aggressively championing liberal causes during her years as a law professor. Some say she was too friendly as dean of Harvard Law School to conservatives and did not recruit as many women and minorities for the faculty as diversitycrats desired.

Speaking as a moderate independent, I like everything about Kagan that the left dislikes. To borrow from my friend Harvey Silverglate, a leading Boston lawyer who champions both civil liberties and an old-fashioned liberal’s brand of political incorrectness, "they want people who look different but think alike."

Kagan seems to be a woman who thinks for herself.

Stuart Taylor talks with The Atlantic’s Bob Cohn about the nominee’s record, why Scalia likes her, and what people don’t get about the Supreme Court. Watch the video here.

The post Kagan May Mean a More Conservative Court appeared first on Stuart Taylor, Jr..

One passage that jumps out is her assertion that "if a court cannot justify a legal ruling in terms of legal principle, then that court should stay its hand."

It’s hard to argue with that. But you have to wonder whether the current Kagan would agree with her younger self when it comes to the most headline-grabbing victory for the Court’s liberals this term, which is expected to wind down by about June 28. That also happens to be the first day of Kagan’s Senate confirmation hearing, unless the schedule slips.

The case is Graham v. Florida. Earlier this week, the Court’s four liberals and sometimes-liberal Justice Anthony Kennedy struck down laws in 37 states and an act of Congress that allowed for sentences as severe as life without parole for juveniles whose crimes did not include homicide.

Stripped to its essence, the decision was based on little more than the personal policy preferences of the five majority justices — preferences with which I happen to agree.

But policy preferences are not constitutional commands. Not unless you subscribe to what the late, liberal lion William Brennan used to call the "rule of five." As Justice Brennan explained it to law clerks, "If you have five votes, you can do anything you want around here."

So where would Kagan have come down in Graham? You might imagine from her resume that she would have voted with the liberal majority. But consider that passage, and others, from her 134-page master’s thesis. She wrote it while in her early 20’s, studying at Oxford University after graduating from Princeton and before entering Harvard Law School.

The thesis implies that Kagan shared the Warren Court’s liberal values and policy goals. And she wrote that "it is not necessarily wrong or invalid" for judges to "try to mold and steer the law in order to promote certain ethical values and achieve certain social ends." But her major point was that in order to justify judicial review, to "stand the test of time," and to avoid being overruled by future justices, the Court’s decisions "must be plausibly rooted in either the Constitution or another accepted source of law," and that "no court should make or justify its decisions solely by reference to the demands of social justice."

Kagan faulted the Warren Court specifically for failing to come up with "a tenable legal argument" for its "spectacularly confused" 1961 decision in Mapp v. Ohio. That’s the case in which the Court extended to the states the so-called exclusionary rule that an earlier Court had created to block federal prosecutors from using illegally obtained evidence. Subsequent courts, wrote Kagan, "could not have weakened the exclusionary rule so easily had its predecessor buttressed the rule with a well reasoned and constitutionally based rationale."

"U.S. Supreme Court justices live in the knowledge that they have the authority to command or to block great social, political and economic change," she added. "At times, the temptation to wield this power becomes irresistible. The justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the justices are likely to forget both that they are judges and that their Court is a court."

Indeed, she wrote, under Chief Justice Earl Warren, in a range of cases, "the Court asserted its right to no less than lead the nation. Essentially, the Warren Court lacked faith in the ability of the president, the Congress or the state legislatures to guide America in the proper direction."

Now consider Kennedy’s majority opinion in Graham. He began with precedents holding that the way to decide whether penalties are unconstitutionally "cruel and unusual" is to assess them by "the evolving standards of decency that mark the progress of a maturing society."

Traditionally, the justices have found violations of these "evolving standards" only if a "national consensus" exists that a particular sentence is excessive for a particular crime or class of offender.

But in this case, Kennedy’s bald claim that "a national consensus has developed against" a life-without-parole sentence for any juvenile, ever, was transparently false.
 
Until recent years, the Court looked mainly to state and federal legislation for evidence of a national consensus. But in this case, as Kennedy had to admit, the federal government, 37 of the 50 states, and the District of Columbia all authorize life-without-parole sentences for some non-homicide offenses by persons under 18 as well as by adults. He might also have noted that in recent decades standards have evolved toward more — not less — severe punishment of juvenile offenders.

This shows that we are far closer to having a national consensus in favor of — not against — life without parole for non-homicidal juveniles in extreme cases, as Justice Clarence Thomas argued in dissent.

But Kennedy, determined to manufacture a phony "consensus" matching his own policy preference, brushed quickly past the conclusive legislative evidence and stressed that in practice, life-without-parole sentences for non-homicidal juveniles are "most infrequent."

True. But Thomas again slam-dunked Kennedy’s illogic: "That a punishment is rarely imposed demonstrates nothing more than a general consensus that it should be just that–rarely imposed." As an example of a case that might qualify, Chief Justice John Roberts, in a separate opinion, cited a 17-year-old who had beaten and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill. (She lived.)

Kennedy’s final prop was to declare that the justices’ "judicial exercise of independent judgment" — a euphemism for their personal policy preferences — called for striking down the laws of 37 states and the federal government.

In justifying this judicial fiat, Kennedy quoted social science evidence about juveniles’ immaturity and looked abroad for the "consensus" that so plainly does not exist in the U.S. Most other nations, Kennedy stressed, have abolished life-without-parole sentences for non-homicidal juveniles. And this, he added coyly, was "not irrelevant" to interpreting the Constitution.

That would be the United States Constitution.

But didn’t Justice Sonia Sotomayor, who joined the Kennedy opinion, testify at her confirmation hearing last year that "American law does not permit the use of foreign law or international law to interpret the Constitution?" Yes, she did. That testimony now appears to be inoperative.

The Thomas response to the majority’s "independent judgment" power grab, which it had used previously in striking down some death penalty laws, was that "I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens."

The bottom line, as UCLA law professor Eugene Volokh wrote in his Volokh Conspiracy blog, is that the justices in Graham were "applying their own views of what society should do, and then trying to add an objective sheen to those views by talking about impersonal ‘evolving standards of decency,’ social change, accumulating knowledge, and reason and experience."

Would the young Kagan have thought — or could the current Kagan think — that Graham was any more "plausibly rooted in . . . the Constitution" than the liberal Warren Court decisions that she criticized in her master’s thesis? It’s hard to see how.

The post The Principles of Elena Kagan appeared first on Stuart Taylor, Jr..

So here I detail some of the logic underlying my major premise: a predictive judgment that complete candor about all big issues would likely doom any Supreme Court nominee, no matter what his or her views might be.

If I’m right about this, it should clinch the case for stonewalling on specific issues even apart from my other, more normative premise: that full disclosure would lead nominees down the road toward essentially promising to decide the big issues in specified ways in a (probably vain) effort to eke out a Senate majority.

To think through how the tell-all approach would play out, let’s consider whether any of the nine current justices – other than Sonia Sotomayor, who has not yet cast votes on many big issues — could win re-confirmation by the Senate now that their views are known.

Such a hypothetical reconfirmation proceeding would approximate the difficulty of confirming a nominee who makes all of her views known.

Take Justice Stephen Breyer, who might well be the easiest of the eight veteran justices to confirm.

Why the easiest? First, because as a fairly liberal Clinton appointee, Breyer would fare better among Senate Democrats than any of the five more conservative justices. Second, because with a record more moderate than those of the quite liberal Justices John Paul Stevens and Ruth Bader Ginsburg, Breyer would probably have a better chance with Senate Republicans.

Even so, I doubt that Breyer could win over any of the 41 Senate Republicans after weeks of TV attack ads and confirmation-hearing cross-examinations focusing on his most unpopular votes, plus those most offensive to key interest groups such as the gun lobby — or, even, animal-rights groups, who are usually inactive during confirmation battles but are in a rage over a recent decision.

I also doubt that Breyer could win a large enough supermajority of Senate Democrats to break a filibuster or even, perhaps, to win an up-or-down vote.

The attack ads could say things like this, quite accurately albeit one-sidedly:

* Breyer voted in 2007 to strike down the federal law against a horrifyingly grisly late-term method called "partial-birth" abortion.

That law passed Congress in 2003 by lopsided votes, including those of 17 Senate Democrats, with polls showing about a 2-1 margin of public support.

* Breyer voted in 2008 to make a virtual nullity of the Second Amendment right to "keep and bear arms," and to uphold a District of Columbia law making it illegal to keep a loaded gun at home for self-defense against murderous intruders.

Polls show that about 70 percent of Americans — and more in many states — support an individual right to keep and bear arms. How would the many Democratic senators who live in fear of the gun lobby feel about voting to put a known nullifier of the Second Amendment on the Supreme Court?

* Breyer voted in 2003 to uphold a system of racial quotas for blacks and Hispanics at the University of Michigan’s undergraduate school that in effect reduced the grades of every white and Asian applicant by a full point — treating white students’ A’s as if they were B’s, B’s as if they were C’s, and so on — in deciding whom to admit.

That would play very badly with the overwhelming majority of Americans who have consistently opposed even much less extreme racial preferences.

* Breyer cast the deciding vote in the 2006 Hamdan decision to interpret the Geneva Conventions in a way that would make it a federal crime for U.S. interrogators to subject captured terrorists — even clearly guilty mass murderers — to any "humiliating and degrading treatment" in an effort to find out where a ticking time bomb might be hidden.

This is not a popular position with the American public, which — polls show — would support not merely "humiliating or degrading treatment" but even outright torture to extract life-saving information from captured terrorists.

* Breyer also cast the deciding vote in 2008 to require full judicial hearings, for the first time in history, for foreign terrorists captured and held overseas by the military, at least if they are imprisoned at the Guantanamo Bay military base in Cuba.

According to an ABC News/Washington Post poll, respondents disapproved by 61 percent to 34 percent.

* Breyer cast the deciding vote in 2005 to remove framed copies of the Ten Commandments from county courthouse walls. He and the other liberals also used strained reasoning in 2004 to duck deciding whether — as the language of the Ten-Commandments and other Breyer-supported precedents seemed to suggest — the words "under God" render the Pledge of Allegiance unconstitutional.

The Ten Commandments decision was unpopular and the Senate had voted unanimously to denounce the lower court decision in the Pledge case.

* Breyer voted this year for a hugely unpopular decision striking down a federal law designed to protect animals from abuse by banning depictions of dogfighting, of "crush" videos in which small animals are tortured to death by women in high-heels, and the like. (To be sure, the vote was 8-1. But the attack ads would not mention that.)

* Breyer voted in 2007 to uphold a Seattle school board integration program that imposed serious hardships on individual children — such as being barred on account of race from the closest and best schools and assigned (in at least one case) to a school reachable only by a four-hour daily round-trip on three city buses — without doing any child much good.

* Breyer cast the deciding vote for the hugely unpopular 2005 decision in Kelo v. New London to uphold the town’s use of its eminent domain power to seize and raze the homes of people in a middle-class neighborhood and give the land to a wealthy private developer whose promised benefits for the city never materialized.

A nominee with a record — or a fully disclosed set of positions — like this would probably get my vote, because I support some unpopular Supreme Court decisions and am reconciled to the fact that I will disagree strongly with any possible nominee about many things.

But could such a nominee win enough Senate votes to get confirmed?

Don’t bet on it. As I noted in my May 14 post, every candid answer would infuriate some of the swarm of interest groups that focus on every imaginable issue. Dozens of candid answers put together would create a powerful coalition — including all Republicans and more than a few Democrats — against confirmation.

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